On Refusing to Wear a Mask

There’s a viral video going around of a woman refusing to wear a mask in a grocery story. She insists that refusing to allow her to enter without one is discrimination. I’m not a lawyer, but her argument is a bit spurious and her tone, in my opinion, seems disingenuous. Let’s break it down.

HIPAA

She states that she has a medical condition that makes it impossible for her to wear a mask. Further, she states that HIPAA regulations mean that she doesn’t have to explain what the medical condition is. Let’s begin with what HIPAA, the Health Insurance Portability and Accountability Act of 1996, is and how it might apply here.

What she’s likely referring to is Title II of HIPAA, the Privacy Rule. In brief, it states that health care providers cannot share your private medical information with anyone without your permission. She’s not a health care provider, and she can voluntarily give out any information she chooses. The grocery store is not a health care provider. HIPAA has nothing to do with anything here, other than to serve as a justification for her demanding an accommodation without providing a reason why the accommodation is needed.

The ADA

For that, we need to turn to the Americans with Disabilities Act of 1990. This is the law that states you can’t discriminate against someone based on a medical conditions. It’s the law that requires stores to have wheelchair accessibility and other accessibility options. The ADA is very clear on what reasonable accommodations must be made by commercial facilities. For other circumstances, such as this one, what constitutes a reasonable accommodation is subject to interpretation.

I would like to think that most people would consider offering to do her shopping for her would be a reasonable accommodation. If you’re unable to comply with the mask requirement, we’ll pick your items for you and deliver them curbside. It’s an alternative to allowing her to enter the store without a mask. In a discrimination lawsuit, the store would likely be granted this point.

She states that for the sake of her privacy she will not give an employee her list, nor allow them to handle her credit card. We all know that it’s established law now that we have no reasonable expectation of privacy in public places. There are employees and customers that can see what you put in your basket. Stores have security cameras. Even with self-checkout, the system has a record of your purchases. That goes on your receipt, along with the last 4 digits of your credit card number, which yes, they have so they can get paid by your bank.

In short, no one is likely to accept privacy concerns as a valid reason for turning down the reasonably accommodation offered.

Discrimination

No store wants the threat of a lawsuit, especially one carrying a discrimination claim. I’ve dealt with this many times in retain management. Even when they know they’d lose a lawsuit, and have no actual intention of filing one, they’ll try to intimidate you with this tactic. They’re not threatening a loss of money, but loss of reputation. I’m going to lose my manager job, the company’s going to be dragged in the media, give me what I want and I’ll go away.

For this one we need to turn to the Civil Rights Act of 1964 which, to spare you the details, doesn’t cover discrimination based on medical condition. That’s what the ADA was created to address, and oh, I forgot to mention, to get an accommodation does require disclosure of your medical condition, which would come out in a lawsuit, because it has nothing to do with HIPAA, so we’re just endlessly talking in circles.

On Refusing to Wear a Mask

Clearly she’s arguing in bad faith. She has a point to make, and she’s applying some level of critical thinking skills to make it. What bugs me about instances like this is that people stop short of full understanding.

She has a general idea of what HIPAA and the ADA are, but rather than gathering full knowledge, she tries to wield what she thinks they mean like a blunt instrument. In doing so, she convinces herself of her own cleverness. It’s all very Dunning-Kruger. She thinks she’s won, because she’s taken some concepts and applied them to a situation she dislikes. Smugness ensues.

That said, the Department of Health and Human Services does have a page on Civil Rights and COVID-19. There’s nothing there about being forced to wear a mask. Instead, it’s all about helping sick people get access to the care they need. Hmm, and you know what else could help sick people? Making a reasonable accommodation for others by not refusing to wear a mask in public.

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